If you were to ask the average person on the street who they think should make decisions on behalf of a child born out of wedlock, the most likely answer you would receive is the mother. The answer seems self-evident.
Certainly a whole range of factors for consideration come into play, for instance, whether the mother is physically and mentally fit and financially capable to care for the child. Assuming that she is, how is the biological father’s position regulated? Would he ever be allowed to make decisions on behalf of his child, such as changing the child’s surname?
What does the Children’s Act say?
Section 19 of the Children’s Act 38 of 2005 clearly indicates that a mother, whether married or unmarried, has full rights and responsibilities towards her child. In terms of section 20, a married father also has full rights and responsibilities. Section 21 regulates the position of an unmarried biological father stating that he will only have automatic parental rights if he is living with the mother in a permanent life partnership and, additionally, consents to being identified as the father. Section 18 allows for fathers who are in a cohabitation relationship with the mother to have an inherent right to contact, care and guardianship.
A father’s rights are conditional
It is clear from these provisions that the father’s rights to the child are conditional as it depends on his relationship with the mother. He does not have any automatic parental rights unless he was in a relationship with the mother. A father has the option to apply under section 2(1) of the Natural Fathers Born Out of Wedlock Act 86 of 1987 for access rights to or custody or guardianship of the child.
Notice of birth of a child born out of wedlock
The Births and Deaths Registration Act 51 of 1992 deals with the registration of births and deaths. Section 10 refers specifically to the notice of birth of a child born out of wedlock. It states that the notice shall be given under the surname of the mother, or at the joint request of the mother and the person who acknowledges in writing that he is the father of the child, under the surname of that person. However, often the child will receive the surname of the mother.
Changing the child’s surname
In terms of section 25(1) it is possible for a mother or guardian (the applicant) to apply to the Director-General (DG) for the alteration of a child’s surname. If the DG denies the application, the applicant can approach the Court to review the decision. The Courts have shown that they are prepared to reverse the DG’s decision if sufficient reasons are provided.
For example, in Damon v Dasram 2014 JDR 2708 (FB) a mother applied to Court for a mandatory order against the DG to change the child’s surname to that of her own. The child had his father’s surname which meant that the father had to consent to anything that the child wanted to do. The father withheld consent for the child to apply for a visa. The Court granted the order on the basis that the father’s consent was withheld unreasonably.
Section 25(2) makes it possible for the biological father to apply for alteration of the child’s surname to the DG. He must, however, provide “good and sufficient” reasons for such alteration. The DG has full discretion to grant the application.
South African law always rules in best interests of the child
From this provision it would seem that the father is able to apply without the mother’s consent. Is this what the legislature intended? What would happen if she was against it? This would seem to infringe upon the mother’s rights. Ultimately the DG will take such a factor into consideration and weigh and balance it against the reasons provided by the father. There is no clear-cut answer as to whether such an application will be successful or not. The DG, however, must ensure that his/her decision is in the best interests of the child as required by section 28(2) of the Constitution of South Africa.
What do the courts say?
In LJ v TB 2013 JDR 1234 (GNP) the Court had to make a ruling on the question whether or not a father (the applicant) of a child born out of wedlock could apply to the High Court to change the child’s surname (which was that of the mother’s). The mother (the respondent) withheld consent.
The first question that the Court had to deal with was whether it had the jurisdiction to decide upon the matter. The High Court has inherent jurisdiction. In simple terms this means that the Court can hear any matter that comes before it. However, inherent jurisdiction can be limited in certain instances. Remember, the High Court is the upper guardian of all children which means that it ensures that a child’s best interests are looked after. In this case, the Judge found that the Court’s jurisdiction was limited for the reason that the Statute specifically refers to the DG. If it was the legislator’s intention that the Court be able to adjudicate upon this, then the legislator would have made it clear. Therefore the Court did not consider the merits of the father’s application.
If the Court had found that it did have jurisdiction, what would have been the possible outcome of the matter? Would one be able to argue that the same test should apply as in Damon v Dasram mentioned above, that is, whether or not consent was withheld and, furthermore, whether or not it was withheld unreasonably?
The only difference here is that the unmarried father does not have automatic parental rights and as such the mother has the right to withhold consent. If the father applies in terms of section 25(2) and the DG refuses the application, the father would probably be able to apply to the Court for a review. Then only will the Court be in a position to make a finding in this regard.
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In conclusion, the DG has the discretion to make a decision which will be based upon all the circumstances taking into account whether or not consent was held unreasonably. Ultimately, any decision that will prejudice the child will be susceptible to review. Therefore, it is not about what the parents want, but rather whether it is in the best interests of the child.
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